The Obama Administration has filed a brief in support of a Maryland photojournalist who says he was arrested and beaten after he took photographs of the police arresting two other men. The brief by the Justice Department argues that the US Constitution protects the right to photograph the actions of police officers in public places and prohibits police officers from arresting journalists for exercising those rights.

The lawsuit arose from a June 2011 altercation in which photojournalist Mannie Garcia witnessed Montgomery County police arresting "two young Hispanic men" in the Maryland suburbs of Washington, DC. Concerned that the police were using "excessive force," Garcia says he pulled out his camera and began photographing the scene from a distance of about 30 feet.

Garcia says that when Officer Christopher Malouf approached him, Garcia identified himself as a member of the press held up his hands to show he was only holding a camera. But Malouf "placed Mr. Garcia in a choke hold and dragged him across the street to his police cruiser," where he "subjected him to verbal and physical abuse." According to Garcia's complaint, Malouf "forcibly dragged Mr. Garcia across the street, throwing him to the ground along the way, inflicting significant injuries." Garcia says Malouf "kicked his right foot out from under him, causing Mr. Garcia to hit his head on the police cruiser while falling to the ground."

Garcia claims that Malouf took the video card from Garcia's camera and put it in his pocket. The card was never returned. Garcia was charged with disorderly conduct. In December 2011, a judge found Garcia not guilty. After the Montgomery County Police Department failed to discipline the officers, Garcia filed a civil rights lawsuit against Montgomery County and the police officers involved in his arrest

The feds weigh in

On Monday, the Obama administration filed a brief arguing that the conduct described by Garcia violates his rights under the First, Fourth, and Fourteenth Amendments. "It is now settled law that the First Amendment protects individuals who photograph or otherwise record officers engaging in police activity in a public place," the federal government argued, citing a 2011 precedent that arose from a similar incident in Boston.

The federal government also suggested that taking Garcia's video card was a violation of the Constitution. "The reach of the First Amendment’s protection extends beyond the right to gather information critical of public officials," the Justice Department wrote. "It also prohibits government officials from punishing the dissemination of information relating to alleged governmental misconduct."

The Obama administration urged the courts to use "considerable skepticism" when police officers use vague charges like disorderly conduct, loitering, or resisting arrest to retaliate against those who record their public activities. "Courts have routinely rejected officers’ attempts to criminalize protected speech through the use of charges that rely heavily on the discretion of the arresting officer on both First and Fourth Amendment grounds," the Justice Department argued.

Finally, the government emphasized that ordinary citizens have as much right to record the actions of the police as professional journalists. While Garcia is a professional photojournalist, the Obama Administration believes that an ordinary citizen would have enjoyed exactly the same Constitutional right to record the actions of police officers in public.

This week's brief echoes arguments the Obama administration made early last year in another Maryland case. In that case, a private citizen used his cell phone to record the conduct of Baltimore police officers who he alleges used excessive force while arresting his friend. The officers allegedly took the man's phone and deleted the video he had taken. That man, like Garcia, responded by filing a civil rights lawsuit.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

116 Reader Comments

And, once again, until the individuals involved in the law enforcement process actually pay penalties for these actions (from the officers directly involved right up the chain of command) directly through jail time and monetary fines these practices will not stop or change.

And, once again, until the individuals involved in the law enforcement process actually pay penalties for these actions (from the officers directly involved right up the chain of command) directly through jail time and monetary fines these practices will not stop or change.

People make the argument, which is true, that the vast majority of LEOs are dependable, ethical, well-intentioned, competent, and sincere in their duty. However, the impact to society of LEOs who are not those things is so enormous, the standards for those guys have to be really tight and really unforgiving; so yeah, you are right on.

As long as the militarization of our domestic police forces continues, they will continue to treat any ordinary citizens who question or oppose their conduct as enemy combatants. The police state nudges another inch toward openly refuting democracy.

First Baltimore City and now Montgomery county. Did Montgomery county learn nothing from the Baltimore city incident where they got slapped down by the courts? Obama even filed a brief on behalf of the gentleman from the Baltimore city incident.

Also, as a side note. To the people who are going to be recording police, please, PLEASE! download the Police Tape app put out by the ACLU. When you start a recording, it is automatically, and immediately uploaded to their server while the recording is in progress. That way if the cops delete the images and recordings from the phone, they are still available for later viewing from the Police Tape servers.

This administration really confuses me. One moment they say drone strikes against US citizens are acceptable. And then the next, they defend a guy who was wrongfully arrested and then beaten by cops.

I wish they would make up their minds and choose between good/evil!

Part of the confusion is the fact that the executive branch, like the other two, is not a monolith, politically. There are a ton of (mostly) conflicting pressures, politics, and influences on every department.

Is it me or does the title seem to indicate that the admin supports the cops and not the journalist?

Not if you read it carefully. It's equivalent to "Obama Administration supports journalist who was arrested after recording cops", not "Obama Administration supports journalist's arrest after recording cops".

Also, as a side note. To the people who are going to be recording police, please, PLEASE! download the Police Tape app put out by the ACLU. When you start a recording, it is automatically, and immediately uploaded to their server while the recording is in progress. That way if the cops delete the images and recordings from the phone, they are still available for later viewing from the Police Tape servers.

I'd love to, but they couldn't be bothered to release it on my phone's platform.

And, once again, until the individuals involved in the law enforcement process actually pay penalties for these actions (from the officers directly involved right up the chain of command) directly through jail time and monetary fines these practices will not stop or change.

People make the argument, which is true, that the vast majority of LEOs are dependable, ethical, well-intentioned, competent, and sincere in their duty. However, the impact to society of LEOs who are not those things is so enormous, the standards for those guys have to be really tight and really unforgiving; so yeah, you are right on.

Of course they are, and I wouldn't punish the lawful.

Personally I think those that work in law enforcement have to be held to the highest standard and punished much more severely than the general population when they do willfully unlawful things.

I can't conceive of any reason that police officers who are found to have restricted federally codified rights like those in the constitution and bill of rights shouldn't go to federal prison for extended sentences.

The same for any of their supervisors that know about their crimes and attempt to do anything other than immediately arrest them and put them to punishment.

This administration really confuses me. One moment they say drone strikes against US citizens are acceptable. And then the next, they defend a guy who was wrongfully arrested and then beaten by cops.

I wish they would make up their minds and choose between good/evil!

as much as i hate to say it, based on what i've seen in Obama's administration thus far, i would not be surprised if they favored the journalist in this situation as a means to subvert the power of non-federal agencies. Obama seems to believe that all agencies outside his direct control are inept (which is not always untrue) and has taken steps to take power away from those agencies to 'get it done'. Specifically i've seen this with congress (see USTR & TPP and others) but continuing the trend wouldn't be much of a stretch at this point. It sounds super conspiracy crazy, i know, but i think everyone is starting to see how prevalent conspiracies (even unwitting ones) actually are within our government.

What does any of that even mean? You think this legal brief was filed because you think it's a means to an end to prop up federal power and then you don't support your argument?!

Gosh, i'd say you're crazy but then again, you prefaced things by stating you know it sounds crazy, so I guess your argument wins!

The Obama administation should take the next step to enact laws protecting citizens in these cases. Police officers are not currently diciplined in these cases. If they are found to have violated constitutional rights then there should be minimum penalties.

Basically, what happened is that some cops beat the shit out of a kid after a UMD basketball game, and then fabricated an arrest report stating that he had attacked them and their horses (and that he sustained his body and head injuries when the horses fought back and kicked him.) As it happens, the beating was recorded by another student on a cell phone video which was posted to YouTube, there was a huge public outcry, and the officers involved were indicted. One of them (but only one) was convicted of second-degree assault just a few months ago.

Unfortunately, the ability to record police officers doing their duty in public spaces is not just a matter of Constitutional rights; more and more, it's become an invaluable tool of basic self-defense against overzealous and corrupt police officers. Decent people cannot stand idly by as these fundamental rights are curtailed.

This administration really confuses me. One moment they say drone strikes against US citizens are acceptable.

For those who oppose the administration on drone strikes, a question is, if someone is a threat to your interests and you have a gun, and they happen to be an American citizen, is it right for you to authorize a gun strike on that American citizen?

While I agree the majority of LEO's are decent people, the rights of a photographer (journalist or plain citizen) are trampled regularly. It happened to me and to almost every photographer who regularly tries to document police activities. Perhaps it is an issue of education but something has to change.

This administration really confuses me. One moment they say drone strikes against US citizens are acceptable. And then the next, they defend a guy who was wrongfully arrested and then beaten by cops.

I wish they would make up their minds and choose between good/evil!

Political Schizophrenia! This has been a problem with our federal government for a while now. It's really not new. One hand tries to violate your civil liberties while another looks to be trying to defend them.

"The reach of the First Amendment’s protection extends beyond the right to gather information critical of public officials," the Justice Department wrote. "It also prohibits government officials from punishing the dissemination of information relating to alleged governmental misconduct."

Try to remember this quote when reading news articles about Bradley Manning.

Because your head will literally implode in on itself when you consider the complete hypocrisy on display.

This administration really confuses me. One moment they say drone strikes against US citizens are acceptable.

For those who oppose the administration on drone strikes, a question is, if someone is a threat to your interests and you have a gun, and they happen to be an American citizen, is it right for you to authorize a gun strike on that American citizen?

This administration really confuses me. One moment they say drone strikes against US citizens are acceptable. And then the next, they defend a guy who was wrongfully arrested and then beaten by cops.

I wish they would make up their minds and choose between good/evil!

You have a US born citizen, like a Tim McVeigh, barrelling down the highway with a truck full of explosives. He's heading towards a nuclear facility. You can put a human element between him and his target, or you can take him out without risk to anyone else using a drone strike. Does he get a free pass because of where he was born?

I sincerely hope not. While drone strikes should be a method of last resort and should be overseen quite publicly, I do not see a reason to rule them out as a tool.

I am, however, very open to hear other opinions on the matter. This one makes sense to me; the argument against it is the slippery slope fallacy, which I don't think is terribly relevant. I could be wrong, mind you.

If the cops involved actually did this, they should be prosecuted, sued, rot in jail and never be given the authority of a badge again.

That being said, they deserve the benefit of the doubt. It's not enough to accuse them (or anyone) of despicable acts (à la the Duke lacrosse case). There needs to be proof. Is there a witness who saw it? Are there hospital records documenting his injuries? What about the video from the cruiser? Something.